United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 318_93_0407

Appeal No. EAT/318/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th October 1994

Judgment delivered on 4th July 1995

Before

HIS HONOUR JUDGE J BULL QC

MR T S BATHO (now deceased)

MR D G DAVIES

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MR R WOOD          APPELLANT

HAM MANOR GOLF CLUB          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR K E HILBORNE

Solicitor

Brock Lodge

Badgers Holt

Storington

West Sussex

RM20 3ET

For the Respondents Mr A Gore

(of Counsel)

Williams, McDougal & Campbell

24 Liverpool Gardens

Worthing

West Sussex

BN11 1RY


 


HIS HONOUR JUDGE BULL QC This is an appeal by Mr Ralph Wood against the decision of the Industrial Tribunal sitting at Brighton on 26th October and 26th November 1992 by which it dismissed a claim by him that he had been unfairly dismissed. Full Reasons were sent to the parties on 25th January 1993.

The Appellant had been in the employ of the Respondent Golf Club as their House Maintenance Controller from December 1983 until his service with them was terminated on 30th March 1992. He was dismissed upon the ground of dishonesty following the disappearance of £2. by way of a gratuity which had been left on the dining room table at that Golf Club. An allegation was made against the Appellant by an eyewitness who accused him of having removed that sum of money unlawfully.

Mr Hilbourne, a Solicitor of the Supreme Court, has appeared on behalf of Mr Wood out of courtesy to this Tribunal. We are indebted to him for the great care which he has taken to present Mr Wood's case with conspicuous ability and eloquence. By way of analogy he drew our attention to the celebrated case of Archer-Shee in the early years of this century, and of the defence by Sir Edward Carson KC. We have to emphasise, as did the Industrial Tribunal in paragraph 10 of their reasons, that these Tribunals are not criminal courts and that we do not determine the question of whether an employee is guilty or innocent of an allegation which may involve the imputation of a criminal offence. It is equally important to stress the nature and role of this Court upon appeal, and we respectfully adopt the judgment of Lord Justice Dillon in Gilham & Ors v. Kent County Council [1985] ICR 233 at 243:

"It is of fundamental importance to the understanding of these proceedings to keep firmly in mind that this court, and the appeal tribunal, only have power to set aside a decision of an industrial tribunal if it is shown that in reaching its decision the industrial tribunal have erred in law. If the issue is only one of fact, this court has no power simply to substitute its own interpretation of the facts for that of the industrial tribunal. This is to a lawyer established law, but it is worth re-stating yet again, because many who are not lawyers find it difficult to grasp the concept of the limited function of the court, and therefore have difficulty in understanding decisions of the court.

In the present case, the key question which arises under section 57(3) of the Employment Protection (Consolidation) Act 1978 as amended, and which is under that subsection to be determined in accordance with equity and the substantial merits of the case, is whether in all the circumstances the employers acted reasonably or unreasonably in treating their ground for dismissal as a sufficient reason for dismissing these employees.

Whether something is reasonable or unreasonable is a question of fact. This is court cannot therefore simply substitute its own view of the facts for that of the industrial tribunal, and consider whether, in the view of this court, the employers acted reasonably or unreasonably in all the circumstances. This court has to consider whether the industrial tribunal erred in law; in practice that means, in this case, considering whether the industrial tribunal either (a) misdirected themselves in law in that they misconstrued their function in considering the question of reasonableness, or (b) reached a conclusion, in holding that the employers had acted unreasonably in dismissing these employees, which no reasonable tribunal, properly directed in law could have reached."

The grounds upon which this appeal is launched are that no sufficient investigation had been carried out by the Respondents at the time when they made the decision to dismiss the Appellant; that there were no reasonable grounds upon which the employers could sustain the suspicion or belief that the Appellant had committed theft; and that the Tribunal erred in their conclusions in paragraph 11 in relation to a statement by a Miss Dobson, further or in the alternative failed to give due weight to her statement of evidence and to the fact that the Council of Management of the Golf Club resolved to dismiss the Appellant without considering her written statement.

The Industrial Tribunal carefully set out in its reasons the approach which had been adopted, and concluded in paragraph 14 that they were satisfied that as much investigation as was reasonable had been made through and by the Offices of the Club. Further, at the time that the decision was taken to dismiss the Appellant, the members of the Council had a genuine belief, on reasonable grounds, that Mr Wood was guilty of that which was alleged. Those are findings of fact by which we are bound. The submission in relation to Miss Dobson's evidence is that the third limb of the requirement in the well-known case of British Home Stores v. Burchell [1978] IRLR 379 was not complied with in that the investigation was based upon a misconception of the vital evidence. Even if the Tribunal misunderstood the response of the Applicant to the question, and as to that we are not satisfied, it would in our judgment not have affected the findings of the Tribunal, because the evidence was before them that the Applicant was made aware of the nature and force of the evidence of Miss Dobson certainly at the meeting of 3rd March, for this was the reason why that meeting was adjourned on that date.

We are driven to the conclusion that there is no ground here upon which we could interfere. The Industrial Tribunal had the privilege which is completely denied to us because we are a Tribunal of law and not of fact, of seeing the witnesses give evidence, hearing their evidence and testing it. In such circumstances it would be quite idle for us to say that we have a better view than that of the Industrial Tribunal. We can detect no error of law in this Industrial Tribunal, and most certainly we cannot say that in any of the respects which are put forward, or indeed, any other respect which occurs to us, that this Industrial Tribunal acted in a way and reached a conclusion that no reasonable Tribunal could have done.

We echo the view of the Industrial Tribunal that it is very sad when a comparatively long period of employment ends in this way, and it may be that many employers would have taken a more lenient course. The Industrial Tribunal concluded that upon the evidence the course chosen by the employers was a permissible option, and that conclusion is one which, in law, they were entitled to reach. It follows, therefore, that there is no point of law here, and that this appeal must be dismissed, and we so dismiss it.